Re Moline and Comcare

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 827

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No A2002/111

GENERAL ADMINISTRATIVE DIVISION		)
Re		WENDY CONNERS MOLINE

Applicant

And COMCARE

Respondent

DECISION

Tribunal

Mr M J Sassella, Senior Member

Dr M D Miller AO, Member

Date25 August 2003

PlaceCanberra

Decision The tribunal affirms the decision under review.  The applicant is not entitled to costs associated with the application.

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Senior Member

the commonwealth as model litigant

4.       The tribunal is aware that Comcare, as a party in tribunal proceedings, regards itself as an exemplar of the ethical standards implicit in the notion of the Commonwealth as a model litigant in legal proceedings.  Almost always, in the experience of the two members who make up this tribunal, Comcare and its representatives well and truly live up to these standards.  Unfortunately in this matter those standards were not evident.  The applicant and her representatives were significantly disadvantaged by the following features of the respondent’s handling of its case:

·     Potentially prejudicial evidence in the form of witness statements by a number of the applicant’s past and present supervisors (ex R22, R23, R24, plus two documents not received in evidence) was filed with the tribunal and served on the applicant’s representatives on 15 May 2003, the Thursday prior to the Monday when the hearing commenced.  The tribunal’s copy arrived very late on the Thursday.

·     The videocassette evidence was played on the second day of the three-day hearing.  This evidence was produced during the hearing without warning.  That in itself was not a problem given that the Federal Court in Australian Postal Commission v Hayes (1989) 18 ALD 135 and in Australian Postal Corporation v Bessey (2001) 32 AAR 508) approved of such a process in relation to video evidence. However, the respondent had sought comments in writing from its medical experts, Associate Professor Oakeshott (ex R21) and Dr McGill (ex R26) which were not tendered or made available to the tribunal or the applicant’s representatives until during the proceedings on the third and final day of the hearing, thereby reducing the time available to the applicant’s representatives to consider their position in relation to that material.

·     On the third and final day of the hearing, at the commencement of proceedings, counsel for the respondent produced for the first time and sought to tender written material relating to a medical examination of the applicant by HSA (ex R25) dating from 23 April 1998.  The opening of the third day of the hearing was delayed because the presiding member was involved in a directions matter that commenced earlier than the appointed time for the hearing.  Contrary to expectations the directions matter ran overtime.  Counsel for the applicant very reasonably objected that her opposing counsel had not extended to her the courtesy of providing to her copies of this HSA material before the hearing began.  The same observation applied to the two expert medical reports on the video evidence.

5. This conduct is…